The Virginia Way leads legislators astray on ethics reform

Published March 27, 2015 by Robert Powell, III

An old joke offers this explanation for the odd pose of George Washington’s statue on Richmond’s Capitol Square. Mounted on a horse, Washington’s head is cocked toward the Capitol as he points toward the South.

He is glaring at the General Assembly and pointing toward the State Penitentiary, old wags would say.

The reference to the State Pen gives you some idea of how old the joke is. A fixture in downtown Richmond for nearly 200 years, the prison was demolished in 1992.  And, of course, Virginia’s elected officials aren’t sent to a state penitentiary. They face federal prison sentences instead.

In the past four years, former Del. Phil Hamilton, former Gov. Bob McDonnell and his wife, Maureen, all have been convicted on federal charges. Hamilton is serving a 9½-year sentence for bribery and extortion while the McDonnells are free on bond as they appeal their corruption convictions to the U.S. 4th Circuit Court of Appeals.

The McDonnells’ downfall shook the General Assembly, which can’t seem to figure out how the “Virginia Way” went wrong.  An unwritten code of conduct, the Virginia Way is supposed to hold elected officials to high standards of civility and deportment. McDonnell was the first of 72 Virginia governors to be convicted of a crime.

The legislature has been reluctant to acknowledge that, in relying on officials’ sense of integrity, the Virginia Way permitted shockingly lax state ethics laws.  During the past two legislative sessions, the General Assembly has made half-hearted efforts to mend those laws.

The first attempt was derided as “Swiss-cheese” reform because of its many loopholes.  The legislature made a second pass this year after the McDonnells’ embarrassing trial. The resulting bill on Gov. Terry McAuliffe’s desk includes some improvements.

It reduces a cap on the value of gifts received by state and local government officials from $250 to $100, while requiring any gift worth $50 or more to be disclosed. Travel also must be preapproved by a Conflicts of Interest Advisory Council.Knowingly violating the law is a Class 5 felony while inadvertent mistakes are subject to civil penalties.

But the legislature still hasn’t gotten it right. There is no cumulative cap on gifts, for example. Legislators apparently can accept as many gifts under $100 as they like as long as they report them.

The most egregious omission in the new bill is the independent ethics commission requested by McAuliffe. This body would have investigative and subpoena powers — in other words, real teeth.

The Conflicts of Interest Advisory Council will only advise legislators on ethical issues while referring citizen complaints to the House and Senate ethics panels. In sum, the council is more of a lapdog than watchdog.

The ethics commission isn’t McAuliffe’s only unfulfilled request. He also had asked for the establishment of a bipartisan commission that would redraw legislative and congressional districts after the 2020 Census. Most states give that power to their legislatures, which are very reluctant to give it up. (In fact, the U.S. Supreme Court now is deliberating an attempt by Arizona’s legislature to abolish that state’s independent redistricting commission, which was established by a voter referendum in 2000.)

Legislators throughout the country follow a time-honored political practice in redistricting — they draw the boundaries to benefit themselves and thwart the opposing party. In essence, they choose their voters rather than take the chance that voters will choose someone else. The result is gerrymandered districts that are overstocked with voters from one party or the other.

A federal court has ruled that the Virginia congressional redistricting maps drawn by the legislature after the 2010 Census are unconstitutional. They lump too many minority voters into Virginia’s 3rd District (a seat held by Democratic Rep. Bobby Scott) while leaving too few in surrounding districts represented by Republicans.

Rather than comply with the court decision and redraw the district, the legislature is appealing the ruling. They want to keep the “safe” districts they have created.

Safe seats, however, lead to internecine warfare in low-turnout party primaries. Legislators and members of Congress are more afraid of zealots in their own party than they are of voters in a general election. They know any attempt at compromise with the opposing party will be branded as treason. The result is endless partisan bickering and gridlock, in Richmond and in Washington.

Passage of the new ethics bill leaves McAuliffe with the choice of signing it, revising it or vetoing it. Who would have guessed before last year that McAuliffe, the master fundraiser for Bill and Hillary Clinton, would be the person trying to hold the General Assembly to higher ethical standards?

If the bill becomes law without an ethics commission, the public can be reassured that there is at least one body independent of the legislature that is keenly interested in making sure that it cleans up its act: the U.S. Justice Department.

If legislators are content with the ethics law they have drawn up, they at least should reposition Washington’s statue to bring it up to date. It should be pointing west toward the federal courthouse.